United Bank For Africa Ltd & Ors V. Dike Nwora (1978)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In proceedings commenced in the High Court of Lagos State, the plaintiff, now respondent, claimed from the defendants, now appellants, jointly and severally, the sum of 3.75 million naira (N3,750,000) being anticipated profits accruing from a contract to supply cement entered into between the plaintiff and certain companies in 1974, the breach of which the defendants jointly and severally induced thus causing the plaintiff damage.

The plaintiff also claimed against the defendants, jointly and severally, in the alternative, the same sum of 3.75 million naira as damages for negligence in handling the plaintiff’s papers relating to the contract.

The plaintiff also claimed an account of all profits which accrued to the third defendant by reason of the induced breach of the contract aforesaid and payment over to the plaintiff of the amount so found.

The plaintiff filed in court and served on the defendants on 18th December, 1975, his amended writ of summons together with an amended Statement of Claim dated 17th December, 1975. When the defendants did not file their Statement of Defence within fourteen days from the date when the Statement of Claim was served on them as provided for in Order 18 rule 6 of the High Court of Lagos (Civil Procedure) Rules, 1973, (hereinafter referred to as the Rules), the plaintiff, on 10th February, 1976, applied to the High Court by motion on notice to the defendants for an order entering judgment as per his writ of summons and Statement of Claim.

On receiving the copy of the motion for judgment, each defendant, on 16th February, 1976, filed his Statement of Defence and served a copy of it on the plaintiff.

Later, on 5th April, 1976, the plaintiff’s motion for judgment was argued before Adefarasin, the Chief Judge of Lagos State, who delivered his ruling on 18th April, 1976. In his ruling, the learned Chief Judge observed:-

Having looked at the defendant’s Statement of Defence I think they should be given an opportunity to pursue their defence. Again, the plaintiff’s claim is for as large a sum as N3.75 million as anticipated profits arising out of a breach of contract. It does not seem to me right to enter an interlocutory judgment in these circumstances when a defence is before the court although technically defective.

He therefore refused to grant the plaintiff’s application for judgment. He, however, ordered-

that the defendants herein shall file their application for enlargement of time within which to file a defence within 10 days of the date hereof. It is this final order that the defendants are aggrieved about and in respect of which they had appealed to the Federal Court of Appeal where their appeal was dismissed. Still dissatisfied, they have now appealed to this court. We agree with learned counsel for the appellants that this appeal raised an important point of procedure capable of affecting the speed at which trials are disposed of in the High Court of Lagos State. We also think that it is capable of causing an unnecessary increase in the cost of litigation.

Having regard to the written arguments filed by both parties and the short submissions made before us at the hearing of the appeal, it became clear that the questions which call for determination are these-

Firstly, does non-compliance with the rules of court which prescribe the time for filing a pleading or other documents result in such pleading or documents being rendered void or treated as a nullity

Secondly, is a pleading or other document filed after the time prescribed by the rules valid but voidable at the instance of the opposite party who may, if he wishes, ask the court to set it aside and

Thirdly, will the court set aside such a pleading or document on an application made by one of the parties if the justice of the case requires it so to do but not otherwise